The term ‘Fair Use’ in the context of copyright law refers to the use of material subject to copyright protection without permission or authorization from the copyright owner, in a way that would not infringe the copyright of the owner. The rationale behind the provision of the ‘Fair Use’ concept is to allow the general public to reap the benefits of the literary or artistic work in a way that would not be prejudicial to the moral and financial rights of the author. It allows the public to analyze, comment and criticize the works and helps in creating and sustaining a healthy environment for the growth of art and literature in the society.
The Berne Convention through its Article 10 permits the making of quotations from a work with appropriate details as to the source from where the quotation is taken and the author of the said quotation provided that the following conditions are met:
1. The work should have been made lawfully available to the public. This rule clarifies that only the work that is published (made available to the public through any of the modes of communication) lawfully can be subject to fair use. The word ‘lawfully’ included in the above rule stresses on the fact that fair use shall not rise from unauthorized publications.
2. The making of the quotations must be compatible with the fair practice. Every country has the right to provide the limitation regulation for the extent and purpose of the fair use of a work that is permissible. The use of a work should be compatible to the said regulations.
3. The extent of the quotations must not exceed the extent that is justified by purpose. There may be various reasons that justify fair use such as critic, comment, parody, education etc., and thus for each the extent of use varies. A parody may require much more use than a critic, and therefore it is essential to limit the use only to the extent of requirement.
The UAE provides for ‘Fair Use’ through its articles 22, 23 and 24 of the Federal law no. 7 of 2002 regarding Copyrights and Related Rights (herein after referred to as ‘the law’).
Article 22 of the law provides for the use of the copyrighted work in the following ways and circumstances provided that two conditions namely 1) the moral rights of the author are not being prejudiced and 2) the work has been lawfully published, must be satisfied:
1. The reproduction of a single copy of the work for the purpose of personal, non-profit and non-professional use. Works of fine or applied arts are an exception to this rule and they are subject to fair use only when they are exposed in a public place with the consent of the right owner or his successor. Architectural works are also an exception to the concept of Fair Use and would be subject to Fair Use only when they permanently exist in public places.
2. The Fair Use of computer programs, applications or databases is allowed only for making a single copy with the knowledge of the legitimate possessor for the following purposes:
a) For a purpose that falls within the licensed purpose.
b) For the purpose of saving or substitution in case the original copy is lost, damaged or becomes unfit for use, on a condition that the spare of extracted copy be destroyed when no more necessary.
3. Reproduction of protected works for use in judicial proceedings, or their equivalent, within the limits prescribed by such procedures, with mention of the source and the name of the author.
4. Making a single copy of the work through the non-profit archives, libraries or authentication offices, either directly or indirectly, in one of the two following instances:
a) Reproduction is made for the purpose of preserving the original copy or of substituting a lost, damaged copy or one unfit for use, if it has become impossible to obtain a substitute thereof under reasonable conditions.
b) The purpose of reproduction is the satisfaction of a request made by a physical person, to use it in a study or research provided it is done only once and on different intervals in case it was impossible to obtain a license for reproduction pursuant to the provisions of the present Law.
5. For citations of short paragraphs, excerpts, or analyses, within the customary limits of the work, for the purpose of criticism, discussion or information, with mention of the source and name of the author.
6. Performance of a work in meetings with family members or by pupils in an educational institution, so long as such performance has not been made for direct or indirect consideration.
7. Exhibition of works of fine, applied, plastic or architectural arts in broadcasts, if such works permanently exist in public places.
8. Reproduction within justified and reasonable limits, of short abstracts of a work in the form of manuscripts or audio, visual, or audiovisual recordings, for the purposes of cultural or religious education, or vocational training. The name of the author and the title of the work are to be mentioned whenever possible. The reproduction should not be made for the purpose of direct or indirect profits. Such reproduction is allowed only in case the license for the same cannot be availed.
Further, article 23 of the law brings under the scope of ‘Fair Use’ the reproduction of the work in such a way and limit that it justifies the objective behind the reproduction which is done through newspapers, periodicals or broadcasting organizations. This provision of the law applies to the following works:
1. Extracts of the works regarding current incidents that have been lawfully made available to the public. The source and author of the work must be mentioned.
2. Published articles relating to discussions of issues, which have preoccupied public opinion at a certain time. Here too, the source and name of the author of the article used must be mentioned. The articles that are prohibited upon publication cannot be used.
3. Speeches, lectures, and addresses delivered in the course of public sessions of the Parliament, judicial councils and public meetings; so long as such speeches, lectures and addresses are addressed to the public, and are reproduced within the framework of reporting current news.
This also provides that ‘Fair Use’ is allowed while using works that are protected under the title of ‘related rights’ of copyright. Thus even the owners of such related rights cannot complain of infringement if the use of the work falls within the scope of ‘Fair Use’ as provided for by the law.
Author : Mrs Jyothi Shyam esq.
Source : Fair Use - An Exception to Copyright
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